Mr Ivan Filimonchuk v Breathe Fresh Australia Pty Ltd

[2024] FWC 3339

[2024] FWC 3339

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Ivan Filimonchuk
v

BREATHE FRESH AUSTRALIA PTY LTD

(U2024/12299)

DEPUTY PRESIDENT MASSON MELBOURNE, 2 DECEMBER 2024

Application for an unfair dismissal remedy – application dismissed pursuant to s.399A of Fair Work Act 2009.

1. On 15 October 2024, Mr Ivan Filimonchuk (the Applicant) lodged an application pursuant to s 394 of the Fair Work Act 2009 (Cth) (the Act) in which he asserts that the termination of his employment with Breathe Fresh Australia Pty Ltd (the Respondent) was unfair.

1. The matter was listed for a conciliation conference before a staff member of the Fair Work Commission (the Commission) on 12 November 2024 but was unable to proceed as the Applicant failed to attend and did not respond to several calls made by the staff member to his contact number.

1. The matter was allocated to my Chambers on 18 November 2024 following which, directions were issued to the parties listing the matter for mention/conference (the Mention) on 27 November 2024 and also setting down a timetable for the filing of material by both parties. The Applicant failed to attend the listed Mention and did not respond to phone calls made by my Associate to his contact number. The Mention proceeded with the Respondent in attendance during which the Respondent made an application that the Applicant’s unfair dismissal application be dismissed pursuant to s 399A of the Act.

1. Correspondence was sent to the Applicant by my Chambers on 27 November 2024 following the Mention, advising the Applicant that the Respondent had made an application pursuant to s 399A(2) of the Act that his application for an unfair dismissal remedy be dismissed pursuant to s 399A(1) of the Act. The Applicant was invited to provide submissions by 5pm on Friday 29 November 2024 as to why his application should not be dismissed. The Applicant was also advised that should he seek to be heard in relation to the s 399A application, he should advise my Chambers. Otherwise, the matter would be dealt with on the papers. No submissions were filed by the Applicant in response to the correspondence sent to him.

Consideration 

1. Turning now to whether the application should be dismissed, s 399A of the Act provides as follows:

“399A Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the Applicant has unreasonably: 

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or 

(b) failed to comply with a direction or order of the FWC relating to the application; or 

(c) failed to discontinue the application after a settlement agreement has been concluded. 

… 

(2) The FWC may exercise its power under subsection (1) on application by the employer. 

(3) This section does not limit when the FWC may dismiss an application.” 

1. Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act. As the Applicant did not file any material in opposition to the application to dismiss his application for an unfair dismissal remedy by the above deadline, I will determine the application on the papers.

1. The Applicant has demonstrated a pattern of non-compliance with directions of the Commission. He has done so by failing to attend the staff conciliation conference on 12 November 2024 and the further Mention listed by my Chambers for 27 November 2024. Despite attempts to contact him the Applicant has made no further contact with the Commission to explain his non-attendance. I am satisfied that the Applicant’s non-attendance at both conferences, without contact or explanation, constitutes an unreasonable failure of the Applicant to attend two conferences listed before the Commission.

1. In the circumstances I have decided to grant the Respondent’s application under s 399A(1), and the Applicant’s unfair dismissal remedy application is dismissed. An Order giving effect to this decision will be issued with this decision.

DEPUTY PRESIDENT

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